What is the 'it'?

There was a time, long ago, when lawyers could occasionally convince their clients to fly them to London in order to have an appeal in their case heard by the members of the Privy Council. (Did they fly first class? It would be tawdry to speculate.)

Those were indeed the days.

Like all good things, this particular gravy train came to an end. But its legacy remains, not least – well, possibly least – in the form of a citation question. I feel that I should mention it, because it is possible that you would not otherwise even be aware of it as an issue.

Early in the life of the Commonwealth Law Reports, a decision seems to have been made to include reports of Privy Council decisions on appeal from the High Court of Australia, even though the advices of the Privy Council are, obviously enough, not judgments of the High Court.

Most of these decisions would also have been published in the United Kingdom by way of the Appeals Cases, the flagship of the Law Reports series.

Thus, we are presented with an interesting, if obscure, citation question: Commonwealth Law Reports or Appeals Cases?

Given that I have been trained to view everything through the lens of authorised versus unauthorised reports, my instinctive response is that, because the CLR can’t possibly be an “authorised” report for Privy Council decisions, I would, if left to my own devices, advocate using only the AC citation, ignoring the CLR as an “unauthorised” version of the case.

But where I work I am not left to my own devices. (Which is probably for the best, really.) The rule that is in place there is to cite one of these cases by way of a parallel citation – in other words, both reports should be cited. Not only that, but the “unauthorised” version (the CLR) is cited first, the case name (if it differs) follows the CLR, and any differences in the text (bloody editors!) are resolved in favour of the CLR. (I hope it goes without saying that, if the case only appears in one of these reports, that is the version of the case that should be cited.)

That is a clear rule. I’m happy to follow it, even if it isn’t what my gut would have had me do. It might even be a better rule, given the prominence of the Commonwealth Law Reports in the history of the High Court. It pays due deference to a cornerstone of Australian jurisprudence. And an Australian practitioner is much more likely to have access to the CLR.

You will, of course, adopt whatever rule your court gives you. The important thing is to recognise when your judge is citing a case that falls within this small subset of Privy Council decisions, so that you can act accordingly.

There are, I should probably add, also Privy Council decisions on appeal from State Supreme Courts. These are not, where I work, subject to any special rule: if it is reported in the Appeals Cases, that is the version that should be cited. A State Supreme Court might, of course, adopt a different rule. I am not qualified to speak on that. My advice would be: when in doubt, go with the Appeals Cases. I don’t see how that could ever be the wrong thing to do.